On appeal from the Supreme Court, whose per curian is printed in 7 N.J. Mis. Rep. 332.
For the appellant, Collins & Corbin (Edward A. Markley, of counsel).
For the respondents, Ward & McGinnis (Peter J. McGinnis, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the defendant below from a judgment for the plaintiffs (husband and wife) entered upon a verdict in an action to recover damages resulting from an injury to Mrs. Clarkson inflicted by the automobile driven by the defendant.
The defendant's first point is that the trial court should have directed a verdict in favor of the defendant because the plaintiff, Lillie Clarkson, was guilty of contributory negligence as a matter of law.
Our answer to this point is that she was not guilty of contributory negligence as a matter of law.
At the trial it was open to the jury, if they saw fit, to infer from the evidence the following matters of fact: On December 3d, 1926, at six-thirty P.M., Mrs. Clarkson (hereinafter called the plaintiff) and other passengers alighted from a bus at the southeast corner of Lexington avenue and Holdsworth Court, two public streets in Passaic. The immediate vicinity was well lighted with several large electric lights. She waited on the curb for the bus to pull away. She wished to cross Lexington avenue (which was fifty feet wide) to her home directly opposite. She looked down the avenue to the south and saw an automobile about two blocks away. She then took two or three steps off the curb and looked to the north and saw the automobile of the defendant approaching, apparently at a moderate rate of speed, about two hundred and fifty or three hundred feet away. There were no other vehicles in the immediate vicinity. She calculated that she could safely cross, and immediately following other passengers who had alighted from the bus, she proceeded directly across, and had gotten about five feet beyond the center of the street when she was hit by the defendant's car (which meanwhile had increased its speed and gave no audible warning) and thrown fifteen or twenty feet to the sidewalk and was severely injured.
Of course the duty of exercising reasonable care between persons using the highways is mutual, and each person may assume that others traveling on the highway will comply
with that obligation. Hence a pedestrian has a right to assume that the driver of an automobile will exercise proper caution in approaching a street crossing. And where, as here, a pedestrian when about to cross a highway at a street intersection sees the defendant's automobile approaching, about two hundred and fifty or three hundred feet away, apparently at moderate speed, the question whether the pedestrian, in the exercise of reasonable care, should have apprehended that it would reach and strike her before she could pass, is one for the determination of the jury. Tischler v. Steinholtz, 99 N.J.L. 149; Venghis v. Nathanson, 101 Id. 110.
The next point is that the trial court erred in instructing the jury that at the time the plaintiff was injured she was upon a crosswalk, if she were within the confines of that portion of the highway which would be embraced within the boundaries of the lines of the sidewalk, if continued across the street.
We think that was not erroneous. This accident occurred in 1926. Our Traffic act then in force (Pamph. L. 1915, p. 305, § 25; Pamph. L. 1916, p. 49, § 12) in effect declared that in places where (as in the instant case) houses are on the average less than one hundred feet apart, pedestrians should have the right of way over vehicles at any street crossing, in the absence of any municipal regulation relating to such crossing (of which there was none), and further declared that "the word 'crossing' includes all duly indicated crossings marked ...